1994 PLP 1349 (MLD)

KHALIL-UR-REHMAN RAMDAY, J.

Abdul Jabbar his brother Muhammad Azam and their father Sher Muhammad had been tried by the learned Sessions Judge of Khoshab for the murder of one Shabbir Ali. The case against Azam and sher Muhammad was found doubtful consequently they were acquitted of the said murder case while Abdul Jabbar was the one who was found guilty of the said murder and having been convicted under section 302, P.P.C., he had been sentenced to death with a fine of Rs.10,000 or six months' R.I. in default of payment of the said fine. He had also been directed to pay Rs.10,000 as compensation to the heirs of the deceased or to undergo six months' R.I. in default of payment of the said compensation. This was vide judgment dated 28-2-1991 of the said learned Sessions Judge of Khushab.

2. Murder Reference No.84 of 1991 seeks confirmation of the said sentence of death. Abdul Jabbar convict has filed Criminal Appeal No.252 of 1991 to impugn the abovementioned conviction and sentences recorded against him. Nazir complainant has approached this Court through Criminal Revision No.507 of 1991 and challenges the acquittal recorded in favour of Azam and Sher Muhammad accused. All these matters are being disposed of together through this single judgment.

3. The occurrence in question had allegedly taken place at about 11-00 a.m. on 27-8-1989 near the railway track in the area of village Haddali about six miles from Police Station, Jauharabad of District Khushab. The same had been reported to Muhammad Akbar S.I. by Nazir Ahmad at about 12-30 p.m. the same day while the former was present at Jauharabad Bus Stand.

4. Nazir complainant had claimed that at the abovementioned time of occurrence, Shabbir deceased was standing near the railway track and was grazing his cattle, when Abdul Jabbar appellant appeared there while armed with .12 bore Carbine and after reaching near the deceased, the appellant fired a shot which hit the deceased at his face, neck and chest whereafter, he fired a second shot hitting the deceased in his abdominal area who then fell down and was shot at a third time by Abdul Jabbar appellant which shot hit the right knee of the said deceased. The complainant had further claimed that he, Muhammad Khan P.W. who is a son of the deceased and one Muhammad Khalil who had come to visit them, were present at the place of occurrence and had witnessed the same. He had added that on the alarm raised, Abdul Jabbar appellant ran away towards the North and further that Shabbir deceased had succumbed to the injuries at the very venue of the occurrence.

5. The complainant had further alleged that Abdul Jabbar appellant had committed this murder at the instance of his brother Muhammad Azam and his father Sher Muhammad accused.

6. Disclosing the motive for the present occurrence, Nazir complainant had divulged that about 11/12 years prior to the, present occurrence, one Muhammad Sadiq, a real brother of Abdul Jabbar appellant had been murdered for which murder, Shabbir Ali deceased, Muhammad Saleem who is a son of Nazir complainant and Muhammad Yasin had been tried and convicted by the Sessions Court but had, however, earned an acquittal from the High Court and that it was on account of this grievance that Abdul Jabbar appellant had done the deceased to death.

7. Muhammad Akbar, S.I. (P.W.14) claimed inter alia to have found three crime empties (Exhs.P5 to P7) from the place of occurrence through his inspection of the spot which he had seized vide memo. Exh.PH. He had further claimed to have arrested Abdul Jabbar appellant on 4-9-1989 whereafter, he alleged that the said appellant led to the recovery of .12 bore Pistol P4 on 8-9-1989 which had been taken into custody vide memo. EXh.P.1

8. The said crime empties and the said Pistol were alleged to have been sent to the Forensic Science Laboratory and as per the report of the said Laboratory Exh.PP, the said crime empties were found to have been fired from the said Pistol P4.

9. When confronted with the prosecution case, all the three accused persons, including Abdul Jabbar accused had pleaded innocence and had claimed that they had been falsely involved on account of enmity.

10. Canvassing acquittal for Abdul Jabbar appellant, it had been argued that both the eye-witnesses were not only closely related to the deceased but were also inimical to the accused persons; that the alleged recoveries of the crime empties and the Pistol were a fabrication; that the appellant had no motive to kill the deceased and that in the circumstances, the appellant was entitled to acquittal.

11. The enmity between the parties on account of the murder of the abovementioned brother of Abdul Jabbar appellant is not in dispute. It had also been admitted by Nazir complainant that he had appeared as a witness against Azam accused of the present case and his brother Sadiq who appears in the motive part of the present occurrence. As has been noticed above, Nazir complainant is a real brother of the deceased while Khan P.W. is a son of the said deceased.

12. Khan P.W. is a young boy of about 15 years of age. He was studying in sixth class during the days of occurrence. He had admitted that he had gone to attend his school on the day of occurrence and that it was during the recess at about 10-30 a.m. that he had come home from where he had come to the place of occurrence carrying meals for his deceased father and it was at that stage that he had witnessed the occurrence. It has come on record that out of the five sons of the deceased, only two, namely, Khan P.W. and his elder brother Aslam were studying and the other three sons of the deceased were not attending any school. It may be mentioned that the third son of the deceased was about 11 years of age at the time of occurrence. It has also come on record that the place of occurrence where Shabbir deceased was stated to be grazing the cattle was only about 200/250 yards from the house of the deceased. In the circumstances, Khan P.W.'s leaving the school at about 10-30 a.m. to go to his house only to carry meals for his father who was only about 200 yards away from his house, is not understandable, especially when the break in the school was only for about 30 minutes. There were other family members available in the house who could have performed this job. Then there is an admission of Muhammad Akbar S.I./I.O. who had stated, without being challenged by the prosecution, that it was after he had reached the place of occurrence at about 1-15 p.m. that he had summoned Muhammad Khan P.W. from his school. This indicates that Muhammad Khan P.W. had either not seen the occurrence and was present in his school from where he had been called by the I.O. or he had gone back to his school despite the murder of his father at about 11-00 a.m. in his alleged presence. In both these cases, the prosecution has left a lot unexplained. It may be added here that Nazir complainant never mentioned either through the F.I.R. or even during the course of his statement at the trial that Muhammad Khan P.W. had gone to the place of occurrence carrying meals for his father and had contented himself to state only that Muhammad Khan P.W. was also present nearby and had witnessed the occurrence.

13. A perusal of F.I.R. and Nazir complainant's statement before the learned trial Court-would demonstrate that it was Shabbir deceased alone who was grazing the cattle near the railway track. He never claimed that he had also gone with the deceased for the said purpose. The complainant only mentioned that he was also present nearby alongwith Muhammad Khan P.W. and Muhammad Khalil (given up). No explanation for his presence near the place of occurrence had, however, been given by him. In the F.I.R. he has stated that he had left behind Iqbal and Ihsan to guard the dead body of Shabbir deceased while at the trial, he took a complete somersault and stated that he had left Muhammad Khan P.W. and Khalil (given up) near the dead body while leaving for the police station to report the occurrence. Muhammad Akbar S.I./I.O. had made another dent in the complainant's claim of his presence at the place of occurrence at the relevant time when he stated during the course of his cross-examination, which statement had again not been challenged by the prosecution, that he had summoned the male persons of the deceased party after he had reached the spot which included even Nazir complainant.

14. Having thus scrutinized the ocular testimony, the conclusion is irresistible that the two eye-witnesses were not only interested and inimical witnesses of the occurrence in question but that their very presence at the place of occurrence and their claim of having witnessed the same was also in serious doubt.

15. The crime empties were alleged to have been recovered on the day of occurrence i.e. on 27-8-1989 whereafter they were allegedly kept in the Mal Khana and it was reportedly on 30-8-1989 that Ata-Ullah Khan A.S.I. (P.W.4) handed over the said empties to Manzoor Hussain F.C. for onward transmission to the Forensic Science Laboratory. Manzoor Hussain F.C. appearing as P.W.13 specifically denied having been entrusted with the said crime empties or having taken them to the Forensic Science Laboratory. No steps had been taken by the prosecution to falsify this part of Manzoor F.C.'s statement or to produce some evidence to demonstrate that Manzoor F.C. was not speaking he truth and it was in fact he who had actually carried the crime empties to the Forensic Science Laboratory on 30-8-1989. Muhammad Akbar, S.I./I.O. claims that he had reached the spot at about 1-15 p.m. whereafter he had collected the said crime empties. Muhammad Amir (P.W.6) who is the only other witness who had been produced to prove the recovery of the said crime empties, claimed that the same had been recovered at about i1-00 a.m. on the day of occurrence. Such-like material which had come on record and which had not been questioned by the prosecution, to say the least, has thrown sufficient dust on the veracity of the said piece of evidence and consequently, the recovery of the crime empties in question; their despatch to the Forensic Science Laboratory and their wedding with the Pistol allegedly recovered at the instance of Abdul Jabbar appellant, cannot be safely relied upon.

16. In view of what has been noticed above, we are of the view that enough doubts had crept into the prosecution case and it could thus not be said that. the prosecution had proved its case against the appellant beyond all reasonable doubts. It may also be mentioned here that although it had not been denied by the defence that Shabbir deceased had earned an acquittal from the High Court yet, it had come on record that the Supreme Court had granted leave against their acquittal and Shabbir deceased was home only on bail. Thus, the matter of acquittal of Shabbir deceased had not attained finality. The appellant party had resorted to legal proceedings to challenge the said acquittal and the matter was once again open before the Supreme Court.

17. All the facts and circumstances above discussed leave us to no option but to hold that the conviction recorded against Abdul Jabbar appellant was not justified. Consequently, the impugned conviction and sentences recorder: against him are set aside and he is acquitted of the charge levelled against him. He shall be set at liberty forthwith if not required to be detained in any other case.

18. The only role attributed to Azam and Sher Muhammad accused was that of conspiracy and it cannot be said that the finding of the learned trial Court in acquitting the two was either perverse or arbitrary.

19. The result is that Criminal Appeal No.252 of 1991 filed by Abdul Jabbar appellant is allowed in the above terms and Criminal Revision No.507 of 1991 filed by Nazir complainant is dismissed.

20. Murder Reference No.84 of 1991 is answered in the negative. Death sentence is not confirmed. N.H.Q./A-590/L Order accordingly.